Brazil is a State Party to several international conventions protecting human rights, standing out among them the International Covenant on Civil and Political Rights of 1966, which came into force in our country through Decree 592/1992 and which, since Decree 11,777 /2023, was complemented by two optional protocols, the subject of this opinion.
Becoming a party to the Optional Protocol to the International Covenant on Civil and Political Rights expresses Brazilian recognition of the jurisdiction of the UN Human Rights Committee, a non-permanent body formed by independent experts that monitors compliance with the Covenant and its protocols, which meets in Geneva three times a year, for periods of three to four weeks.
With the accession, the Committee became empowered to receive and examine communications from individuals residing in our country who consider themselves victims of violation, by Brazil, of any of the rights set out in the Covenant, provided that all available internal resources have been exhausted, this limitation not being applicable if the assessment of appeals is unjustifiably prolonged.
Brazil’s submission to the jurisdiction of the UN Human Rights Committee reinforces the system of international protection of the fundamental rights of our citizens and adds to the jurisdiction of the Inter-American Commission and Court of Human Rights, the latter of which already has nine judgements against Brazil.
These judgements assessed deficiencies in investigations of murders carried out by security agents (Gomes Lund et al., Herzog at al., and Favela Nova Brasília cases), by parliamentarians (Márcia Barbosa de Souza case) or occurring in land conflicts (Garibaldi and Sales Pimenta cases), and deaths in work environments (Employees at the Firework Factory of in Santo Antônio de Jesus and their families case). They also considered cases of forced labor (the Hacienda Brasil Verde Workers case) and delays in demarcating indigenous lands (the Xucuru Indigenous People and its members case). All of these cases are already under monitoring by the Justice National Council (CNJ) Monitoring and Inspection Unit, created by Resolution 364/2021.
The second protocol deals with Brazil’s international commitment to abolish the death penalty. Although the prohibition of capital punishment is already enshrined as a fundamental right in our Constitution (article 5, XLVII), it allows its application, generally, in the event of declared war. Accession to the second protocol makes this case clearer, by making the capital punishment conditional on prior conviction for a criminal offense of an extremely serious military nature committed in time of war.
The introduction of both protocols into the Brazilian legal system is relevant. Firstly, because international human rights treaties have supralegal status in our country (Supreme Court ruling on RE 466.343). Secondly because, being an internationally uniform text, it will allow comparative analysis between the understanding of our Courts and that already expressed in decisions of courts in several other countries, expanding opportunities to improve our case law on topics such as repression of discriminatory practices, determination of peoples indigenous people, due legal process and protection against arbitrary or illegal interference in private life or illegal offenses to honor and reputation, a relevant topic in times of discussion on the regulation of social networks.
The presidential decree was long awaited, as Congress had already approved the text of the two protocols by legislative decrees in 2009.
Author: Eduardo Szazi